First Nat. Bank North Platte v. Sheets

years’ imprisonment on each conviction. In light of our reso
lution above of moore’s assignments of error concerning the
jury instructions, we need not further address this assignment
of error.
4. C umulAtive error
Finally, moore argues that there was “cumulative” error mer
iting reversal. moore argues that “some of the errors [alleged]
may not have been of sufficient importance if considered sepa
rately to warrant a reversal, but if considered together, they
present a genuine question as to whether [moore] received a fair
trial.” Brief for appellant at 48. Inasmuch as we have already
found above that there is merit to moore’s allegations of error
concerning the jury instructions, there is no need to further
address this assignment of error.
V. CoNCLUsIoN
We find that the jury instructions were confusing or mis
leading to the jury. We find, however, that there was sufficient
evidence to support a finding of guilt. as a result, we reverse,
and remand for a new trial.
reverSed ANd remANded for A New triAl .
firSt NAtioNAl bANk N orth plAtte , truStee , Appellee , v .
JAmeS ANd mAry S heetS et Al ., AppelleeS, ANd firSt
NAtioNAl bANk S outh dAkotA, AppellANt .
740 N.W.2d 613
Filed october 16, 2007. 	No. a 07 632.
1. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
2. Jurisdiction: Appeal and Error. a jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter of law.
3. Equity: Claims: Property. Interpleader, although authorized by statute, is an equi
table remedy whereby a disinterested stakeholder in possession of property claimed
by two or more persons may require them to litigate the claims of each without
embroiling him or her in the controversy.
FIrst Nat. BaNK NortH PLatte v. sHeets 	35
Cite as 16 Neb. app. 35
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

4. Equity: Claims: Property: Parties. In an interpleader action, the claimants of the
fund should be made parties to the proceeding.
5. ____: ____: ____: ____. When two or more parties claim the ownership of a fund
in the hands of a third, an action in equity may be maintained to recover the fund
and to litigate and determine the ownership of it, and all persons claiming the
fund are necessary and proper parties to the action.
6. Parties. When the determination of a controversy cannot be had without the pres
ence of new parties to the suit, Neb. rev. stat. § 25 323 (Cum. supp. 2006) directs
the court to order them to be brought in.
7. Judgments: Final Orders. Generally, final judgments must not be conditional, and
unless there is an equitable phase of the action wherein it is necessary to protect
the interests of defendants, a conditional judgment is wholly void.
8. Judgments: Final Orders: Appeal and Error. a conditional interlocutory order
is not wholly void; rather, conditional orders have no force and effect as a final
order or a judgment from which an appeal can be taken.
9. Final Orders: Appeal and Error. a conditional interlocutory order cannot mature
into a final, appealable order without further court consideration regarding the task
or obligation that was purportedly not met.
10. Judgments. Whether a writing claimed to be a judgment is sufficient for that
purpose depends more on its substance than its form.
11. Judgments: Equity. the void conditional judgment rule does not extend to actions
in equity or to equitable relief granted within an action at law.
12. Claims: Property: Jurisdiction. In order to warrant an interpleader, the court
must have jurisdiction of the subject matter in controversy and of the parties mak
ing adverse claims to the subject matter.
appeal from the District Court for Lincoln County: doNAld
e. rowlANdS ii, Judge. motion for rehearing overruled.
Kirk e. Brumbaugh and Cory J. rooney, of Brumbaugh &
Quandahl, P.C., L.L.o., for appellant.
No appearance for appellees.
iNbody, Chief Judge, and CArlSoN and CASSel, Judges.
CASSel, Judge.
INtroDUCtIoN
We consider the motion for rehearing filed by First National
Bank south Dakota (FNB south Dakota) in response to our
summary dismissal of the appeal for lack of jurisdiction. In
this interpleader action, the complaint named multiple parties
defendant, including one over which no jurisdiction had been
obtained at the time of the district court’s order determining
the defendants’ rights to the property. Because the action was
36 	16 NeBrasKa aPPeLLate rePorts

commenced but never disposed as to that party, the order from
which FNB south Dakota attempted to appeal was not a final
judgment. We overrule the motion.
BaCKGroUND
First National Bank North Platte (FNB North Platte) filed
a “Complaint in Interpleader.” the complaint was filed on
January 3, 2007, and named six defendants: James sheets; mary
sheets; Credit Bureau of North Platte, Inc., doing business as
Professional Collection service (Professional); Greenwood trust
Company (Greenwood); Unifund CCr Partners (Unifund); and
FNB south Dakota. the complaint alleged that FNB North
Platte had made a loan to James sheets and mary sheets secured
by a deed of trust upon certain real estate in North Platte and
that the sheetses had defaulted on the loan. FNB North Platte
exercised its power of sale under the deed of trust, selling the
real estate subject to unpaid real estate taxes and realizing sale
proceeds of $25,109.75 in excess of the amount necessary to
satisfy the indebtedness secured by FNB North Platte’s deed
of trust. the complaint alleged that each of the defendants may
claim some right, title, or interest in the excess sale proceeds.
FNB North Platte alleged that the sheetses may be entitled to
claim a homestead exemption under Neb. rev. stat. § 40 101
(reissue 2004). It alleged that each of the other defendants may
claim an interest pursuant to various judgments specifically
alleged in the complaint.
FNB North Platte requested issuance of summons only as to
the sheetses, apparently relying upon voluntary appearances by
the remaining defendants. except for Greenwood, each of the
defendants voluntarily appeared and filed pleadings asserting
their claims to the excess sale proceeds. Greenwood filed no
voluntary appearance or pleading, and no process was issued or
served against Greenwood.
on march 13, 2007, FNB North Platte filed a motion to allow
payment of the proceeds into court. on april 23, the district
court conducted a hearing on this motion at which each of the
parties was represented in some manner, except for Greenwood.
By order entered april 25, the court authorized FNB North
Platte to pay proceeds of $25,232.42 to the court clerk and
FIrst Nat. BaNK NortH PLatte v. sHeets 	37
Cite as 16 Neb. app. 35

held that “upon such payment [FNB North Platte] shall be
dismissed as a party to the case.” the order further provided,
“Upon receipt of collected funds, the [court clerk] is authorized
to pay [the sheetses] the sum of $12,500.00 representing their
[h]omestead [e]xemption claim, and upon such payment the
[sheetses] shall be dismissed.” trial of the remaining issues was
set for may 15.
on april 25, 2007, Professional filed a motion for summary
judgment. on may 7, FNB south Dakota filed a motion for
summary judgment. on may 15, the district court conducted a
hearing on the motions for summary judgment. By order entered
on may 16, the court determined that FNB south Dakota’s judg
ment had become dormant and ceased to be a lien upon the real
estate, that one of Professional’s judgment liens had first priority
to the remaining proceeds, that Unifund’s judgment lien had sec
ond priority and would exhaust the proceeds, and that no funds
would be available regarding Professional’s other judgment
lien. the court sustained Professional’s motion for summary
judgment, overruled FNB south Dakota’s motion for summary
judgment, and directed the court clerk to disburse the remaining
proceeds, part to Professional and the remainder to Unifund.
on June 7, 2007, FNB south Dakota filed its notice of
appeal and deposited the statutory docket fee. on July 10, this
court dismissed the appeal for lack of jurisdiction, citing Neb.
rev. stat. § 25 1315 (Cum. supp. 2006) and Malolepszy v.
State, 270 Neb. 100, 699 N.W.2d 387 (2005), as authority sup
porting the dismissal. this court noted that there was “no final
appealable order as to Greenwood . . . and [the sheetses].” on
July 20, FNB south Dakota filed a motion for rehearing accom
panied by a brief, which we discuss below.
assIGNmeNt oF error
In its brief on rehearing, FNB south Dakota assigns that this
court erred in summarily dismissing the appeal as not being
taken from a final, appealable order.
staNDarD oF reVIeW
[1,2] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
38 	16 NeBrasKa aPPeLLate rePorts

which the appeal is taken; conversely, an appellate court is with
out jurisdiction to entertain appeals from nonfinal orders. Pfeil
v. State, 273 Neb. 12, 727 N.W.2d 214 (2007). a jurisdictional
question which does not involve a factual dispute is determined
by an appellate court as a matter of law. Cumming v. Red Willow
Sch. Dist. No. 179, 273 Neb. 483, 730 N.W.2d 794 (2007).
aNaLYsIs
Summary Dismissal.
this court’s summary dismissal identified two jurisdictional
issues. First, we observed that the april 25, 2007, order directed
that the sheetses were to be dismissed as defendants upon dis
bursement of their $12,500 homestead exemption. We viewed
this as a conditional order and found in the record no subsequent
order actually dismissing the sheetses.
second, we noted no disposition of Greenwood as a party
to the case. the record shows that no process was ever served
upon Greenwood; nor did Greenwood file a voluntary appear
ance or any pleading. We reasoned that under § 25 1315, an
order or other form of decision, however designated, which
adjudicated the rights and liabilities of fewer than all of the par
ties shall not terminate the action as to any of the parties, and
the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating the rights and
liabilities of all of the parties. In other words, the order was
interlocutory. We noted the decision of the Nebraska supreme
Court in Malolepszy v. State, supra, which interpreted § 25 1315
to require an explicit adjudication with respect to all claims and
parties in the action. We digress to note that none of the orders
in the district court purport to make the express determination
that there is no just reason for delay, and the express direction
for the entry of judgment, contemplated by § 25 1315(1).
Arguments for Rehearing.
In FNB south Dakota’s brief in support of its motion for
rehearing, FNB south Dakota argues that the “granting of sum
mary judgment in favor of [Professional] was a final order that
determined the rights to the remaining proceeds.” Brief for
appellant on motion for rehearing at 2. relying upon Neb. rev.
FIrst Nat. BaNK NortH PLatte v. sHeets 	39
Cite as 16 Neb. app. 35

stat. § 25 1902 (reissue 1995), FNB south Dakota argues that
“determining the allocation of the remaining proceeds affected
a substantial right in all of the remaining parties because there
was no money left to be dispersed [sic].” Brief for appellant on
motion for rehearing at 3. FNB south Dakota reasons, “When
the summary judgment was granted in favor of [Professional],
the judgment was granted against all of the remaining parties,
whether or not they filed a response or pleading contesting
the judgment.” Id. FNB south Dakota asserts that the sheetses
“were dismissed from the lawsuit.” Id. at 4. It acknowledges
that Greenwood “never filed an answer or participated in the
proceedings.” Id. It argues that the order granting summary judg
ment and determining to which parties the remaining funds were
to be disbursed was a final, appealable order.
Nature of Interpleader.
[3 6] the answers to these jurisdictional questions depend
upon the nature of an action in interpleader, a question infre
quently 	discussed 	in 	Nebraska 	jurisprudence. 	Interpleader,
although authorized by statute, is an equitable remedy whereby
a disinterested stakeholder in possession of property claimed by
two or more persons may require them to litigate the claims of
each without embroiling him or her in the controversy. Strasser
v. Commercial Nat. Bank, 157 Neb. 570, 60 N.W.2d 672 (1953).
the claimants of the fund should be made parties to the pro
ceeding. see Burke Lumber & Coal Co. v. Anderson, 162 Neb.
551, 76 N.W.2d 630 (1956). When two or more parties claim
the ownership of a fund in the hands of a third, an action in
equity may be maintained to recover the fund and to litigate
and determine the ownership of it, and all persons claiming the
fund are necessary and proper parties to the action. Id. When the
determination of a controversy cannot be had without the pres
ence of new parties to the suit, Neb. rev. stat. § 25 323 (Cum.
supp. 2006) directs the court to order them to be brought in.
Burke Lumber & Coal Co. v. Anderson, supra.
Sheetses.
With these general principles in mind, we first turn to the
resolution of the action against the sheetses. Upon further
40 	16 NeBrasKa aPPeLLate rePorts

consideration, we determine that the april 25, 2007, order
directing dismissal of the sheetses upon payment of the sum
of $12,500 represents no barrier to appellate jurisdiction. the
order in our transcript bears the clerk’s endorsement, dated
april 26, 2007, reciting that a check for $12,500 was paid to the
sheetses and mailed to their attorney on that date.
[7] Generally, final judgments must not be conditional, and
unless there is an equitable phase of the action wherein it is
necessary to protect the interests of defendants, a conditional
judgment is wholly void. Lemburg v. Adams County, 225 Neb.
289, 404 N.W.2d 429 (1987). We find the conditional judgment
rule inapplicable for at least two reasons.
[8] First, in Custom Fabricators v. Lenarduzzi, 259 Neb.
453, 610 N.W.2d 391 (2000), the Nebraska supreme Court
explained that a conditional interlocutory order is not wholly
void; rather, conditional orders have no force and effect as a
final order or a judgment from which an appeal can be taken.
Unlike the situation in Malolepszy v. State, 270 Neb. 100, 699
N.W.2d 387 (2005), where the trial court’s order was silent
concerning the disposition of a third party claim, in the instant
case, the trial court’s april 25, 2007, order expressly disposed
of the sheetses’ interest in the excess proceeds and directed that
upon payment of that interest, they would be dismissed. to the
extent that this order was conditional, the condition clearly was
fulfilled on the next day after entry of the order.
[9] a conditional interlocutory order cannot mature into
a final, appealable order without further court consideration
regarding the task or obligation that was purportedly not met.
Custom Fabricators v. Lenarduzzi, supra. the Nebraska supreme
Court explained that this is so because parties should not be left
to guess or speculate as to the final effect of a conditional inter
locutory order. In the instant case, however, the condition did not
depend upon some future performance or nonperformance by
one of the parties to the action; rather, it depended solely upon
the performance of a ministerial act by a court official in execu
tion of the express terms of the interlocutory order.
[10] In effect, the april 25, 2007, order represented a determi
nation not that the sheetses be dismissed, but that the sheetses’
interest in the excess proceeds was limited to $12,500 and
FIrst Nat. BaNK NortH PLatte v. sHeets 	41
Cite as 16 Neb. app. 35

that their claims would be satisfied by the clerk’s distribution.
Whether a writing claimed to be a “judgment” is sufficient
for that purpose depends more on its substance than its form.
Havelock Bank v. Woods, 219 Neb. 57, 361 N.W.2d 197 (1985),
overruled on other grounds, Nielsen v. Adams, 223 Neb. 262,
388 N.W.2d 840 (1986). the substance of the april 25 order
determined the sheetses’ interest in the fund and the disposition
of $12,500 of the fund.
[11] second, in Strunk v. Chromy-Strunk, 270 Neb. 917, 708
N.W.2d 821 (2006), the Nebraska supreme Court held that the
void conditional judgment rule does not extend to actions in
equity or to equitable relief granted within an action at law. as
we observed at the outset, an action in interpleader is equitable
in nature. thus, the district court’s april 25, 2007, order was not
automatically void.
thus, the court’s action with respect to the sheetses consti
tutes no barrier to appellate review. However, because of the
situation concerning Greenwood, we nonetheless lack jurisdic
tion of the appeal.
Greenwood.
[12] the Nebraska supreme Court has never determined
whether an interpleader action constitutes an action in rem or in
personam. FNB south Dakota argues that the court’s may 16,
2007, order applied to Greenwood despite Greenwood’s never
having been served with process or making a voluntary appear
ance. this argument implicitly asserts that the action was in
rem and that when the court determined the disposition of the
fund, it rendered a final order as to all parties, even a party over
which no personal jurisdiction had been obtained.
In order to warrant an interpleader, the court must have
jurisdiction of the subject matter in controversy, and of the
parties making adverse claims to the subject matter. the
court does not have jurisdiction over persons who are not
parties to the proceeding, and jurisdiction in interpleader
can only extend to the fund deposited in court and cannot
embrace in personam jurisdiction on the issues of liability
that go beyond the fund. However, where the court has
jurisdiction of the subject matter of the suit, it may be
42 	16 NeBrasKa aPPeLLate rePorts

entitled to decide issues relating to the res even though
jurisdiction of the litigants cannot be obtained.
48 C.J.s. Interpleader § 21 at 114 15 (2004).
We 	reject 	FNB 	south 	Dakota’s 	argument 	relating 	to
Greenwood for at least two reasons. First, the decision in Burke
Lumber & Coal Co. v. Anderson, 162 Neb. 551, 76 N.W.2d 630
(1956), suggests that the Nebraska supreme Court would treat
an equitable proceeding in interpleader as an action in perso
nam or, at least, not as one purely in rem. the court stated:
“When two or more parties claim the ownership of a fund
in the hands of a third, an action in equity may be main
tained to recover the fund and to litigate and determine
the ownership of it, and all persons claiming the fund are
necessary and proper parties to the action.”
Id. at 561, 76 N.W.2d at 637 38, quoting Conservative Savings
& Loan Ass’n v. City of Omaha, 73 Neb. 720, 103 N.W. 286
(1905). FNB North Platte alleged that Greenwood has an inter
est in the property. If, as the Burke Lumber & Coal Co. decision
suggests, Greenwood is a necessary party, the action could not
proceed without Greenwood.
second, FNB North Platte has already determined to make
Greenwood a party. By filing the action naming Greenwood as
a defendant, FNB North Platte commenced the action against
Greenwood. see Neb. rev. stat. § 25 217 (Cum. supp. 2006).
although under § 25 217, the action stands dismissed without
prejudice as to any defendant not served within 6 months from
the date the complaint was filed, the 6 month period was still
running at the time of the may 16, 2007, order. as of may 16,
Greenwood remained a party—even though the district court
had not acquired personal jurisdiction over that party. Because
FNB North Platte’s complaint was filed on January 3, as of the
date of FNB south Dakota’s attempt to appeal to this court,
Greenwood remained a party which had not been subjected to
personal jurisdiction. the district court had no power to make
a final judgment, which would necessarily affect Greenwood’s
interest in the property, while Greenwood remained a party but
was not subject to the court’s personal jurisdiction.
Under the general authority quoted above, it may be possible
to proceed where personal jurisdiction over a defendant cannot
FIrst Nat. BaNK NortH PLatte v. sHeets 	43
Cite as 16 Neb. app. 35

be obtained. However, on the state of the record before us, there
is no basis to state that personal jurisdiction over Greenwood
could not have been obtained. the record shows no attempt
to effect service of process upon Greenwood, and it has not
entered any voluntary appearance. We cannot assume from a
silent record that personal jurisdiction over Greenwood could
not be obtained.
CoNCLUsIoN
at the time of filing of FNB south Dakota’s notice of appeal,
Greenwood remained a party to the interpleader action, and its
interests had not been, and could not have been, determined
by the district court’s may 16, 2007, order. thus, the district
court’s order was not final because it did not finally determine
the rights of all parties to the action. this court lacks jurisdic
tion over this appeal and properly dismissed the appeal.
motioN for reheAriNg overruled .
44 	16 NeBrasKa aPPeLLate rePorts